A blog devoted to the actors and public policy issues involved in the 1998 District of Columbia Court of Appeals decision in Freedman v. D.C. Department of Human Rights, an employment discrimination case.

Hey, buddy. How does the new year find you, my friend? As for me, well . . . "The new year finds me in low spirits, or perhaps I'm simply low in spirits. I drank them all to the lees on New Year's Eve."

Of course, that was the opening line of my letter to you from January 2004, one year ago. You never read that letter, or so you claim -- in the conspiracy of silence you and William concocted for the benefit of The Powers That Be. You read only one of my letters -- or so you reported to The Authorities -- the one dated April 16, 2004 -- and the rest, as George Orwell would have it, is "history." Well, that was the year that was: 2004, a year of actions and reactions (and not all of them salutary, to be sure). I spend my days still wrestling with questions that haunt me: "Why did Brian do it? Why? Did I disappoint him in some way? Did I make him angry?" What was behind it all I cannot begin to guess.

As time goes by I grow in age and awareness (paranoid awareness, some claim), if not in wisdom and maturity. Though, for me, each new year brings nothing new, just a repetition of the old. New Year? I think not. "Now the old year passes and vanishes," (I paraphrase Nietzsche), "and all at once I remain the same. I myself belong to the causes of the eternal recurrence. I come again, each New Year's Day, with this sun, with this earth, to experience not a new life or a better life or a similar life. I come back eternally to this same, selfsame life, in what is greatest as in what is smallest, to experience again the eternal recurrence of all things, to speak again the same words, write again the same letters."

Brian, buddy, Dear American friend, that miserable patch of event, that melange of nothing, while I was looking ahead for something to happen, that was it! That was life. I lived it! -- A pessimistic thought. But then, perhaps it is not too late. I may well do something to redeem the last twenty years of my life. (I think I've said that before.)

To tell you the truth, I feel like the Henry James character, John Marcher: the man who was predestined to live an empty life, the man to whom nothing on earth was to have happened. You must know the Henry James story, "The Beast in The Jungle?" "Everything fell together, confessed, explained, overwhelmed, leaving him most of all stupefied at the blindness he had cherished. The fate he had been marked for he had met with a vengeance -- he had emptied the cup to the lees; he had been the man of his time, THE man, to whom nothing on earth was to have happened. That was the rare stroke -- that was his visitation. So he saw it, as we say, in pale horror, while the pieces fitted and fitted. . . . It was the truth, vivid and monstrous, that all the while he had waited the wait was itself his portion." John Marcher waited a lifetime for a final judgment that when rendered resolved Nothing -- the nothingness that was his life.

Did you catch that Strauss concert on TV the other night? I can't say it's something I waited to see. Year in and year out it's the same crap. PBS broadcasts the Vienna Philharmonic in a concert of Strauss waltzes, polkas, and whatnot each New Year's Day from Vienna. I used to enjoy the concerts. But they've become tiresome for me. Now, I generally watch the first few minutes of the concert, then reach for the remote. Don't get me wrong. I sometimes have hankerings after goodness and refinement, and want to hear Strauss, to read poetry and to cherish human ideals. But an hour-and-a-half of waltzes and polkas is just a little too delightful for me.

Schizoid that I am, I prefer Wagner to Strauss. As a matter of fact, from what I've read, Strauss himself seems to have preferred Wagner to Strauss. A preference for Wagner is a diagnostic criterion for Schizoid Personality Disorder, did you know that? Wagner' music, so it's been observed, has a special appeal for the emotionally isolated or repressed, for the individual who encompasses the psychological Great Divide that exalts thought over feeling: Nietzsche, Proust living alone in his cork-lined room; Albert Schweitzer (Jean-Paul Sartre's cousin, by the way), who turned his back on the Western world to live out his life in Africa; Bernard Shaw, under-sexed and unable to relate to others except through ideas (and adaptations of ancient myths, such as Pygmalion). This is not to mention the composers, for instance Richard Strauss -- of whom Lotte Lehmann, who revered him, wrote: "As a rule he appeared utterly aloof and impersonal, so cold in his reaction to people that they would withdraw instantly and give up any misguided attempt at friendliness"; Mahler and Schoenberg, both of them neurotic and alienated to a degree; the celibate Bruckner (Anton, not Wally -- the sportscaster on WRC-TV). I am not, of course, saying that Wagner appeals to all emotionally deprived people, or only to deprived people, but the words of Thomas Mann about "deep and single bliss in the midst of the theatre throngs" touch on something crucial about this art's power: it makes possible a passionate warmth and fullness of emotion without personal relationships. Wagner's music seems to have a particular appeal to the isolated and the odd.

Yes, I am isolated and I am certainly odd. I am a divided man. Like the city of Vienna itself, really. Vienna at the turn of the twentieth century -- Vienna at the decline of the Dual Monarchy -- was like a cracked mirror that could not reflect a true image, and therefore appeared fragmented and inconsistent. Thus the city of Vienna, the precious pearl in the Habsburg crown which was so dear to the Emperor's heart, was the place above all others whose inhabitants lived a life of inconsistencies and false appearances: a veritable case of "false reflecting," as Jerry Seinfeld would say. Vienna was a city of cracked mirrors, skinny mirrors, and assorted reflecting devices of dubious reflective veracity.

It has been said that Vienna was the city of paradoxes; certainly many mutually incompatible political and ideological movements were initiated there: Zionism and anti-Semitism; the cult of traditional womanhood and feminism; the aristocratic ostentation of state occasions and the prototype of the capitalist bourgeoisie not entirely free of a staid Biedermaeier cautiousness; a flourishing middle class with values still apparently rooted in the past, and a restless coterie of equally middle class intellectuals profoundly antagonistic to these values. This was the Vienna where science thrived and was discussed by a wide variety of learned societies. This was the Vienna where radically innovative scientific discoveries (of which psychoanalysis was certainly one) were greeted with a conspiracy of silence, unless whoever had pioneered them was officially acknowledged by the powers that be.

Sigmund Freud, one of Vienna's famous inhabitants, was himself a divided, and, at times, an isolated man. All accounts concur to create an image of Freud in the early 1890's as the traditional young Jewish doctor with a conservative middle class background, eager to work hard for the sake of his family as befits a responsible, loving husband and father. But a more careful examination of the facts -- based on letters to his friend Wilhelm Fliess -- reveals a very different picture. Indeed, such an examination reveals a Steppenwolf -- half-man, half-wolf, "Steppenwolf, baby, Steppenwolf!" The placid scientist, the patient and conventional lover is in fact a man of violent (or at least potentially violent), sometimes uncontrollable passions -- or passions that are only controlled after a painful inner (and not always inner) struggle.

Freud -- like myself, I believe -- exploited the profound discrepancy between his emotions and his reason. Freud the jealous, impulse-ridden future husband, was at odds with Freud the rational man who could objectively diagnose inconsistencies within himself and within society (such as Vienna's "transfer or transition" from a tradition-bound seat of the monarchy to a cosmopolitan city populated by radical scientists and artists). One biographer observes: "He was beyond doubt someone whose instincts were far more powerful than those of the average man, but whose repressions were even more potent. The combination brought about an inner intensity of a degree that is perhaps the essential feature of any great genius." Well, of course, I'm no genius. I'm just intense -- though, during lucid moments (as I once told a sneering Inspector General), I can display a brilliant legal mind. But definitely, it can be said of me, as it has been said of Freud, that there is not a single trait of my character, not a decision I have made nor an incident in my life, that cannot be interpreted in two different ways.

Every person has demons. We all have horrible fears and insecurities that we need to overcome. Mine come from never feeling accepted by any group, never being received. An inner intensity and fragmentation and a corresponding inability to derive a sense of wholeness and a relaxation of inner tension in the company of others have maintained my status as outsider -- a role that, in middle age, I have actively cultivated. I wanted only an authentic life. I wanted only to try to live in accord with the promptings which came from my true self. Why was that so very difficult? Why? -- And that, my friend, is The Unanswered Question.

A horrible kind of predestination hovers over each new attachment I form. "Only connect," E.M. Forster proposed. "Only I can't," -- that I know. I have always felt both a certain disdain for an ordinary sense of belonging, and a hunger or a nostalgia for it that has never entirely gone away.

I am an artist. Not a great artist, but an artist nonetheless. If I am a mediocre artist, well, I'll settle for that. That designation will suffice; it places me in a distinct category of persons, namely, those who have suffered and who are driven to transform their suffering through expression -- innovatively, brilliantly, or perhaps just imitatively and mediocrely. There was much suffering in the childhood of all great writers BECAUSE they experienced the wounds, humiliations, fears, and feelings of abandonment that are an inevitable part of that period of life much more strongly and intensely than others. (If I am a mediocre artist, perhaps it is that I did not suffer enough! "No pain, no gain," as Mozart's personal trainer used to say.) By storing up the pain they suffered, by making it an essential part of themselves and of their imaginative life and then expressing it in transfigured form, some artists guarantee the survival of their painful feelings.

I don't think The Mad Monk appreciates this aspect of me: that my obsessions -- with you, for instance, buddy -- are not just a substitute for a normal, gratifying existence. My obsessions preserve or repeat (and let us not forget my compulsion to repeat) past suffering. They are a substitute for past suffering. "I want to be Brian's friend," I tell The Mad Monk. "You are obsessed with Brian," she will respond, "because you don't have a real friend. If you had a real friend, you'd forget about Brian. Brian, for you, Mr. Freedman, is a substitute for a normal, healthy friendship. You fantasize about being Brian's friend to compensate for your loneliness. If you had a real friend you would not fantasize about Brian." Thus spoke The Mad Monk -- and spoke, and spoke, and spoke.

But what does Dr. Bash's interpretation assume? Dr. Bash seems to assume that my thoughts and fantasies about you, Brian, are a substitute for a healthy past: that there was some nurturing experience or relationship in the past (in my childhood) that serves as a prototype for my fantasies about you. Isn't that what she is saying or assuming? I imagine the ideal as a substitute for the real. But what was my reality? Did I experience a unqualifiedly gratifying relationship in the past that imprinted itself on my unconscious, which I now try to revive in fantasy? That raises the question: If I had the lived experience of a healthy relationship as prototype for current fantasy, why is my ability to develop relationships so severely impaired? Nurture a child and that child as an adult will have the ego capacity (unimpaired by past suffering) to actualize his needs in the real world.

What I'm saying is -- and it's the same point made by the psychoanalytic renegade Alice Miller -- the suffering adult immortalizes a painful past; the suffering adult's fantasies are not simply a compensation for frustrated drives. Alice Miller observes that in creative writers who are struggling with a painful past we find the dissociation of painful feelings from the first attachment figures, toward whom they were directed, and their association with new, unreal fictitious figures, which guarantees the "survival" of the neurosis.

Miller continues: "It is this rift, the dissociation of feelings from those who caused them, along with the preservation of their content in a fantasy world, that shapes an artist's work, although the artistic expression of suffering does not do away with neurosis. Suffering, can, however, be blunted in the process of writing, for the writer possesses in his art an imaginary object with ideal qualities: it is available, can always understand him, take him seriously, be supportive," and does not inquire into his fluency in Hebrew, direct him to attend his local synagogue, or recommend that he eat out. The artist can tell his woes to this imaginary object without interruption or reproof.

Let me offer something concrete that ties together several issues. The late analyst Peter Blos specialized in the failures in emotional adaptation of male patients. His clinical experience convinced him that difficulties in emotional relationships between men, such as rivalry feelings, the expression of competition, oppositionalism, and defiance, in action and thought, which are directed against other men, have to be largely comprehended as the result of an incomplete detachment from the real father and his protective presence in the boy's life -- a presence either actual, construed, or wished for. I repeat: Actual, construed, or wished for.

As for my obsession with you, buddy, I think there's a real question about whether my fantasized friendship with you is a substitute for a gratifying, actual relationship with an early attachment object -- or (and this is crucial) whether the torment of an ungratified (or ungratifiable) fantasy constitutes the immortalization, or repetition, of a painful "wished for" relationship with an early attachment object. Do you see the distinction? According to The Mad Monk, I fantasize about you because I'm lonely and, so she reasons, if my fantasy were gratified it would dissolve, like salt in a glass of water. What about the following interpretation? My fantasy of a friendship with you is an atavism grounded in masochism: the fantasy satisfies a masochistic need to preserve the torment of a "wished for" (but never gratified) satisfying relationship with pops. In the latter case, that unconscious fantasy will not be undone by the present gratification of social needs or drives. The repetition compulsion dictates that I reexperience or reencounter a "wished for" (but never gratified) relationship with a (not so) ideal father. Life Beyond The Pleasure Principle preordains that I experience misery, not pleasure. All the while I have waited to be your friend, Brian, perhaps the wait itself was my predestined portion.

Do you see how Dr. Bash's interpretation denies past suffering? She denies an interpretation of my obsession with you as a preservation of suffering, and instead depicts my obsession as a substitute for something gratifying.

Dr. Bash's approach, at least in my interpretation, indicates her identification with the unempathic parent. The unempathic parent denies that his or her child has suffered, just as The Mad Monk denies that I struggle with the effects of past suffering. To paraphrase Alice Miller: The psychotherapist of an adult patient, as the suffering child's posterity, takes on, in a sense, the role of the patient's parents, since the therapist, too, can dispense recommendations to the patient without having to deal with the patient's actual suffering. In my opinion, that's just not kosher.

Be that as it may.

In me, as in Hermann Hesse's Steppenwolf, the rational man and the man of violent passions -- my rude-boy counterpart, the wolf -- do not go the same way together, but are in continual and deadly enmity. One exists simply and solely to harm or restrain the other, and when there are two in one blood and in one soul who are at deadly enmity, then life fares ill. Well, to each his lot, and none is light.

I have not had an exactly pleasant and happy life of it. This does not mean, however, that I am unhappy in any extraordinary degree (although it may have seemed so to me all the same inasmuch as every man takes the sufferings that fall to his share as the greatest). (A Viennese expression has always appealed to me: "The situation is hopeless, but not serious." The abysm of despair never seems to negate my capacity for humor.) Even he who has no wolf in him, may be none the happier for that. And even the unhappiest life has its sunny moments -- its bewitching and refreshing significant moments -- and its little flowers of happiness between sand and stone. So it is, then, with me too. It cannot be denied that I am generally very unhappy; and I can make others unhappy also, that is, when I like them or they me. For all who get to like me, see always only the one side in me. Many like me as a refined and clever and interesting man, and are horrified and disappointed when they come upon the wolf in me: a man of violent (or at least potentially violent), sometimes uncontrollable passions, passions that hide in dark places -- or passions that are only controlled after a painful inner (and not always inner) struggle.

And they have to be horrified because I wish, as every sentient being does, to be appreciated as a whole and therefore it is just with those whose friendship I most value that I can least of all conceal and belie the wolf: the wolf of the dimly-lit lair. There are those, however, who are attracted precisely to the wolf in me, the free, the savage, the untamable, the dangerous and id-driven, the passionate wolf who resides in the forest's dark recesses, and these find it peculiarly disappointing and deplorable when suddenly the wild and wicked wolf is also a man, and has hankerings after goodness and refinement, and wants to hear Mozart, to read poetry and to cherish human ideals. Usually these are the most disappointed and angry of all; and so it is that I bring my own dual and divided nature into the destinies of others besides myself whenever I come into contact with them.

Friday, December 30, 2011

In mid-September 1985 I obtained employment at the law firm of Hogan & Hartson as an agency-supplied paralegal. I shared office space with another temp named Charles Leon Green, who had graduated law school earlier that year.

The following creative piece is a depiction of Mr. Green, written as a parody of the writings of Freud. I must have driven my office mate nuts--there's little doubt of that!

It is interesting that the issues of authorship, diplomatic immunity and the use of symbolic or disguised references arise in a paper I wrote in 1992, seven years after I wrote the following piece.
___________________________________

The Over Civilized and the Malcontent

Ridendo dicere severum

EDITOR’S PREFACE

Psychoanalytic circles were recently set a stir by the announcement that a hitherto unknown paper putatively written by Sigmund Freud had been discovered. Though the paper was unsigned the mode of presentation and the acuity of the psychoanalytic insights contained therein leave little doubt that the work emanated from the pen of the master. We believe firmly in the paper’s authenticity and present it now to an eager and expectant world in the interest of bettering the lot of all mankind through psychoanalytic insight.

Even if the paper proves bogus, the style bears such a close resemblance to that of Freud that it merits interest if only as a clever literary forgery.

THE OVER CIVILIZED AND THE MALCONTENT

It is not to be doubted that, owing to man’s animal heritage, hostilities and aggressive tendencies comprise an essential element of his unconscious mental life. Owing to the exigencies of civilized living, however, the aggressive instincts natural to man must in some way be renounced. For a constant and open expression of aggressive instincts, which no doubt pervaded the lives of mankind’s ancestors --and, indeed, ensured their very survival—would be inimical to the reasoned intercourse upon which civilization is grounded.

To be a civilized man is to be in a large sense, a creature of renunciation. Individual human beings differ, however, in the way they handle the dilemma of being “tamed savages.”

Specifically, certain individuals place a high—perhaps a too high—premium on politeness, amiability and repression of all hostility and aggression and view with disdain, and slander as brutish beasts, all those who are not similarly disposed. Does this mean that such individuals do not feel hostility and do not in fact express their natural hostilities by some means? Certainly not.

Generally, the amiability observed in such individuals is merely a thin veneer masking the hostility that is the communal heritage of mankind. The question is: What happens to the hostility?—How is it vented? What might be the response of an individual who becomes the object of a veiled hostility and who, owing to a high intellect and sensitive nature, comprehends that he has become such an object?

I recently had the occasion to make the acquaintance of one such individual of the amiable type—a rather gifted and refined attorney. During the course of our not infrequent discourse, it became clear to me that his amiability was a foreground appearance. He was totally unaware that he was in reality venting a profound hostility on me through an altogether camouflaged means.

Owing to a characteristic common to persons of his type—the “creative” type—he seemed to view all reality as one “unbounded universe.” That is, his references to the objective a world really mirrored images of his own unconscious mental life—his likes, dislikes, hostilities, etc.—and his reactions to those around him. Though his discourse with me was always fastidiously polite, a pervasive hostility seemed to lurk in the background and surfaced though “coded messages.” One could say that his hostility was encrypted. It was by means of such encrypted hostility that he was able to vent normal aggression and yet at the same time maintain the veneer of amiability and derive the goodwill which normally accrues to individuals of such seemingly even-tempered character.

Examples abound. His way of calling me a “phony” was to call attention to a federal judge who had changed her appearance. He was able to tell me—symbolically--that he found it difficult to greet me by calling attention to a political leader’s forced exchange with a revolutionary. Perhaps most telling was that, for a time, he made repeated references to sexual inverts. The implication was obvious and need not detain us. After he became more convinced of my normal sexual disposition, the references to sexual inversion ceased abruptly. This last example is telling since it tends to refute the inference that these observations are rooted in this writer’s paranoia.

It may be concluded that this individual maintained an emotional equilibrium by expressing all hostility in a disguised form: that a morbidly-exaggerated fear of giving offense -- really a fear of rejection and retribution--dictated a rigidly-enforced regimen of amiability and that expression of hostility, otherwise barred as violative of an authoritarian unconscious code of civil conduct, nonetheless gained discharge through veiled and surreptitious means. Thus, goodwill could be maintained while normal hostile impulses found an outlet.

Certainly few, if any, persons who knew my esteemed acquaintance would have recognized in him what I describe; his exchange with others would remain on a polite and amiable level since they would remain unaware that they may have become the object of a beguilingly-insidious abuse. Owing to my own pathological sensitivity, high intellect, and familiarity with psychological dynamics, I was well aware--too aware—of what he was communicating unintentionally and unfortunately, our discussions tended to break down into vituperative and uncivil discourse. Perhaps this is the only possible outcome in such cases—where one speaks in code and is able to condemn with impunity while another is the singular individual who both comprehends the code and recognizes himself as the victim of the slander.

By way of analogy, one might liken my tactful acquaintance to an individual accorded the benefit of diplomatic immunity who might commit crimes with impunity since his crimes would not be cognizable or--recognizable--by the courts. The only resort remaining to the victim, deprived of civil – or civilized – recourse, would be an abusive and abrasive self-help---an exaggeratedly hostile response mediated by feelings of impotence in the face of his victimizer’s diplomatic status.

I would like to add the following observation. I had earlier written in my Civilization and Its Discontents: “Originally the ego includes everything, later it separates off an external world from itself. Our present ego-feeling is, therefore, only a shrunken residue of a much more inclusive—indeed, an all-embracing feeling which corresponded to a more intimate bond between the ago and the world about it. If we may assume that there are many people in whose mental life this primary ego-feeling has persisted to a greater or less degree, it would exist in them side by side with the narrower and more sharply demarcated ego-feeling of maturity, like a kind of counterpart to it. In that case, the ideational contents appropriate to it would be precisely those of limitlessness and of a bond with the [unbounded] universe.”

It is noteworthy that my acquaintance alluded to a passing interest in cosmology and his inability to comprehend the concept of a bounded universe. Psychoanalytic research suggests that such thinking is a common to the “creative type.' If one assumes that my observations regarding ego functioning quoted above are applicable to the subject of this discussion, it is quite plausible that my acquaintance views all existence as part of his own unbounded psychological universe and that this disposition provides a ready identification of objective reality with his own feelings.

Moreover, this disposition may be readily used in the service of the expression of hostility. That is, rather than express hostility openly, such an individual would be able to encrypt his hostility by analogizing or identifying remote events and persons in objective reality with his feelings about people around him.

Of not incidental interest is the fact that my acquaintance often reproached me for my essentially self-oriented view of the world; my constant use of the personal pronoun irritated him. Yet his own world view was no less solipsistic—it was merely that he talked about himself and his feelings through alternative means, i.e., through a process of what he perceived to be unconscious identification with the universe about him.

To close, let me state that I held my acquaintance in the highest esteem. He possessed a rare and highly-refined intellect complemented by a rich and varied mental life. Indeed, it would be appropriate to close with a quote from one of my earlier works: "There is no one so great as to be disgraced by being subject to the laws which govern both normal and pathological activity with equal cogency.”

I understand that the technical problems with downloading of deposition transcripts into our databases have been solved and that we can proceed with the Jean Baker company serving as reporters. Our first round of document searches (focusing on documents relating to issues at Myrtle Beach and to each of the scheduled deponents) has been run. The system works as expected, and the database team has done a fine job. The database is expected to be completed today (perhaps excepting a few documents from Avco's own files). Elimination of duplicate records (resulting from multiple copies of a single document appearing in government files) is planned to proceed next week. A program is being prepared at the firm's expense, not Avco's, that will identify likely duplicates, which Silvia will then check against the actual documents.

Thank you for your interest in the motions law clerkship at the Second Circuit Court of Appeals. However, I am unable to offer you a position at this time. You should know that you were among more than seven hundred qualified applicants, and the decisions were not easy.

The termination meeting was held about mid-day on Tuesday October 29, 1991. The decision to terminate was apparently made the previous day, October 28, 1991. I noticed the discrepancy at the termination meeting, which heightened my wariness. Why didn't they let me go at the end of the business day on Monday October 28, 1991?

The following is an excerpt from Anthony Storr, M.D.'s book about creative persons titled: The Dynamics of Creation, published in 1972. In one of his books, Dr. Storr quoted with approval the work of my former treating psychiatrist, Stanley R. Palombo, M.D.
_______________________

Some psychological tests, of which the Minnesota Multiphasic Personality Inventory is the best known, purport to measure an individual’s tendency toward neurosis and psychosis by means of a questionnaire. The questions are so framed that the individual's replies indicate whether he possesses depressive, hysterical, paranoid and other neurotic or psychotic traits or not. It will not surprise any reader who has been patient enough to follow the argument of this book so far to learn that creative persons tested in this way do actually admit to more psychopathological traits than the average population, thus confirming the popular belief that artists are ‘mad’ or at least neurotic. But, as I showed in the last chapter, they are also different from the general population in possessing greater ego-strength. In other words, although their psychopathology may put them under greater stress than the average person, they have a superior controlling apparatus, and are thus no more, though perhaps no less, likely to suffer from neurosis and psychosis than anyone else. These test results confirm our general hypothesis, and, especially for this reason, we must be cautious in interpreting them. It may be that creative people because they are often so well in touch with what goes on inside themselves, answer such questionnaires with greater insight than the average person and therefore only appear to have more neurotic traits than other people. The average are often unconscious of their neurotic propensities, tend to be self-satisfied, and often answer questions with less self-doubts than they ought.

I'll go to the Social Security Administration and file for Social Security disability benefits and state that my former employer determined on the basis of consultations with two mental health professionals, including a psychiatrist, that I am too disturbed to be employable.

The Social Security Administration will then contact the firm and want to know more about this. Then what do they do?

GF

I assume I wrote this letter in early 1993, after I received Akin Gump's Response to Interrogatories (dated May 22, 1992) in late December 1992.

Craig W. Dye had started his employment at Hogan & Hartson on Monday October 6, 1986.The referenced task of bates-labeling all the Chrysler air bag documents had begun in May 1986; it took 5 months to complete. There were hundreds of thousands of documents. The billing partner on Chrysler was James Hourihan, Esq.

I am eager to be considered for an entry level associate position with the firm of Hogan & Hartson and submit for your consideration a resume together with two recommendations and a writing sample.

I have been employed since September 1985 as a temporary paralegal in the Computer Applications Department under the supervision of Ms. Sheryl Ferguson. Attorneys with whom I have worked include Ms. Catherine J. Lacroix and, most recently, Ms. Maree Sneed.

Since my primary aim is to acquire experience in the law and not simply pecuniary gain, I am willing to accept a position at a salary considerably below that offered to entry level associates. Further, should the firm decide to make an offer of employment, I am willing to postpone my employment for a generously-reasonable period until such time that the Computer Applications Department is able to accommodate the loss of my services.

Senatorial courtesy, a long-standing tradition in the United States Senate, dictates that a Senator be given the opportunity to assist the constituents they were elected to represent. Therefore, as a matter of courtesy, I am forwarding your correspondence to the Honorable Eleanor Holmes Norton who represents the District of Columbia.

Appellant claimed that he was the victim of sexual harassment and discrimination by his former employer, a large local law firm (“the firm”), because of his sexual orientation. After an investigation, the Department of Human Rights (DHR) determined that there was no probable cause to believe that unlawful harassment or discrimination had occurred. The Superior Court affirmed that determination. From that ruling appellant brings this appeal; we affirm.

I

In March 1988 appellant began working at the firm, first as a temporary legal assistant, then as a full-time legal assistant, and eventually as a member of the firm’s litigation support staff. Throughout his tenure with the firm, appellant received generally favorable performance evaluations.
____________________

* Judge King was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1998

Note that the D.C. Superior Court cited inapposite case law.Evans v. Bally's is not even a Title VII case; plaintiff in that case was an alleged harasser whose lawsuit contended that the employer had terminated his employment after inadequately investigating the alleged victim's harassment complaint. Plaintiff was not an alleged victim of discrimination.

Where there is common knowledge of harassing and discriminatory behavior directed at plaintiff, an employer's investigation that fails to uncover even that common knowledge is evidence of pretext in the termination decision. See ROBINSON v. JACKSONVILLE SHIPYARDS, 1760 F.Supp. 1486 (M.D. Fla. 1991) (where an employer receives adequate actual knowledge of the state of the work environment but, like an ostrich, the company elects to bury its head in the sand rather than learn more about the conditions to which an employee complains, the employer is liable for hostile work environment harassment).

Akin Gump admits that conducting an effective investigation requires careful consideration of the issues and thoughtful planning. It will be noted that the attorney manager who conducted the investigation of my case (Dennis M. Race) started his career as a labor lawyer, working in the Office of Solicitor of the U.S. Department of Labor. The firm's managing partner (Laurence J. Hoffman), who executed the Response to Interrogatories filed with DHR on May 22, 1992 also began his career as a labor lawyer, working for the National Labor Relations Board. Malcolm Lassman, who reported to the management committee on issues relating to paralegals, started out as a labor lawyer.

Even a minimal investigation of my harassment complaint would have disclosed the following facts admitted by the D.C. Corporation Counsel and Akin Gump itself.

1. The D.C. Corporation Counsel admitted that "at a firm dinner in May 1989, another legal assistant [Jesse Raben] acknowledged hearing a rumor that [I] was gay." (R. 329, 341). Brief of Appellee District of Columbia at 8. Under the common law, publication of false statements that an individual is homosexual constitutes defamation per se. The D.C. Corporation Counsel admitted that I was a victim of tortious conduct by coworkers and/or supervisors and that it was known among firm personnel at least 2 1/2 years before I lodged a harassment complaint.

3. Robertson's memo to Race dated October 25, 1991 prepared after I lodged a harassment complaint against her (and others) was retaliatory since its allegations contradict the employer's own business records. Why didn't Race investigate the veracity of supervisor Robertson?

4. The D.C. Corporation Counsel admits that in early August 1989 there was a widespread fear that I might become armed and extremely dangerous -- more than two years before I was terminated. Brief of Appellee District of Columbia at 9. Why didn't the employer investigate this? (Fears by coworkers that an employee might become violent are a symptom of subtle job harassment known as mobbing.)

5. The record contains a Complaint for Damages filed in U.S. District Court by coworker Pat McNeil, who was supervised by Robertson. The complaint alleges widespread knowledge that supervisor Robertson was viewed as a racist by black employees. The McNeil Complaint for Damages establishes complaints by employees about Robertson as of July 1991 -- 3 months before my termination. Why did Dennis Race not uncover the fact that Robertson was a Title VII problem during his investigation of my complaint in late October 1991, and why didn't Race question Robertson's veracity?

7. Akin Gump's attorney managers either knew or should have investigated relevant law showing that there is a phenomenon of subtle job harassment cognizable by the courts. See, e.g., Eide v. Kelsey-Hayes (Michigan).

A harassment complaint based on “very subtle” behavior by coworkers is legally cognizable, and I directed the Court to the following:

“9/ Appellant's complaint of harassment to the employer concerned very subtle harassment. While an unsophisticated, nonlegal employer might plausibly deem an employee's complaint based on such harassment unbelievable, it is far less convincing that knowledgeable attorney managers of a major law firm would credibly find appellant's harassment complaint "baseless as proof of sexual or religious harassment" [Rec. 138]. In fact, a complaint based on subtle harassment is legally cognizable. At least one court (in a foreign jurisdiction), noting that "sexual harassment based on the creation of an offensive, hostile and intimidating environment . . . can take many forms and is often very subtle," has permitted expert testimony to illuminate for the finder of fact the nature of plaintiff's work environment and the sexual connotations of seemingly trivial events. Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986).”

My recital of harassing incidents could have led to one of three conclusions by Akin Gump’s attorney managers (both Dennis M. Race and managing partner Laurence Hoffman started their careers as labor lawyers): (1) I was simply mistaken but not mentally ill; (2) I was a victim of very subtle harassment (see Eide, above) and not simply mentally ill; (3) I was mentally ill. Akin Gump’s sworn declaration implies that it could have reached only one conclusion: that I was mentally ill and not suitable for employment.

The subtle form of job harassment known as mobbing or bullying to which I may have been subjected has been recognized in the literature since the 1970s. The fact that the D.C. Human Rights Act does not provide a legal remedy for mobbing victims does not vitiate the fact that the very existence of a subtle form of workplace harassment known as mobbing (or the subtle harassment considered by the Court in Eide, above) detracts from Akin Gump's implied assertion that it was compelled to view my allegation of subtle harassment as necessarily the product of mental illness and not something else.

8. Record evidence shows that employees in the litigation support department were not even aware that Dennis Race had conducted an investigation. See Record at 41: "6. Dennis Race didn't question anybody in the Department. He never talked to me. If he did an investigation, wouldn't you think that he'd have talked to various ones in the Department? I don't know of anyone in the Department he talked to. Maybe he only talked to selected people Chris Robertson picked, Chris' favorites. [Note that Pat McNeil's conjecture suggests a violation by my supervisor, Chris Robertson, of D.C. Code sec. 1-2525(b), prohibiting the aiding or abetting of retaliation.]"

9. Akin Gump admitted, and the U.S. District Court for the District of Columbia found in McNeil, that a transfer from the litigation support department to the paralegal program constituted a promotion. The employer admits it knew I was transferred from paralegal program to litigation support in March 1990. Why didn't Race investigate the reason for the discriminatory demotion in March 1990 by legal assistant administrator Maggie Sinnott and litigation support supervisor Robertson (a known racist)?

According to Freedman, at a firm dinner in May 1989, another legal assistant acknowledged hearing a rumor that Freedman was gay. R. 329, 341. Brief of Appellee District of Columbia at 8.

Additionally, Freedman claims that at a legal assistant happy hour, this administrator introduced him to female employees of the firm, but not to other males. R. 327, 337. Brief of Appellee District of Columbia at 6.

Freedman claims that at the firm’s 1989 Christmas party, one of the firm’s attorneys glanced at his genital area. R. 344. In the summer of 1990, the same attorney glanced at Freedman’s genital area during an elevator ride. R. 330, 344. Brief of Appellee District of Columbia at 9.

12. My recital of harassing conduct, adopted as fact by DHR, cited three incidents involving my direct supervisor Robertson. Why did DHR not question the fact that the employer, in its recital, omitted those three incidents involving Robertson -- indeed, failed to mention anywhere that I had ever complained about Robertson?]

On October 29, 1991, the firm told appellant that it had concluded that he could not function in a group setting and that it did not have a position which allowed him to work alone and isolated from other employees. Accordingly, appellant’s employment with the firm was terminated as of October 31.

II

On February 4, 1992, appellant filed an administrative complaint with DHR, alleging that the firm had “subjected[ed him] to differential treatment in terms and conditions of employment, harass[ed him] and terminat[ed his] employment because of sexual orientation (homosexual).” 2/ Accompanying
______________________

Applying the analysis set forth in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981), the Director determined both that appellant had presented a prima facie case of unlawful discrimination and that the firm in turn had shown a legitimate business reason for its decision to fire him, but that appellant had failed to satisfy his ultimate burden of demonstrating that the proffered reason was

-4-

pretextual and that he was in fact a victim of unlawful discrimination. 3/ Specifically, the Director stated:

Appellant moved for reconsideration on the ground of new evidence, asserting in addition that the Director’s ruling omitted material facts, misstated material facts, relied on immaterial facts, and applied the law incorrectly to the facts. On September 24, 1993, the Director noted that, on reconsideration, she must determine whether the previous conclusion “based on the evidence and application of the law followed rationally from the material contested issues of facts . . . [and] whether pertinent facts were either misstated or omitted resulting in a significant alteration of the ‘total mix’ of information made available resulting in a misapplication of law.” She reiterated the applicable standard of analysis, recounted the findings of facts she had initially made, and reviewed appellant’s claims of new evidence and misstated facts. The Director determined that there was no new evidence, but only new and unsupported allegations, and that if there were any misstatements of fact, they were immaterial to the outcome of the case. She concluded that the evidence of record contained nothing to convince her that the initial determination was incorrect.
______________________

Appellant then filed in this court a petition for review of DHR’s determination of no probable cause. This court, however, in an unpublished Memorandum Opinion and Judgment, dismissed his petition for lack of jurisdiction, without prejudice to the filing of a civil action in the Superior Court. Freedman v. District of Columbia Department of Human Rights, No. 93-AA-1342 (D.C. January 10, 1995, amended by order filed September 20, 1995). Accordingly, on October 10, 1995, appellant filed a petition in the Superior Court for review of DHR’s decision.

In an order filed June 11, 1996, the trial court denied appellant’s petition and affirmed DHR’s determination of no probable cause, finding that it was supported by substantial evidence and that appellant had failed to demonstrate the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See D.C. Code Section 1-1510 (a)(3)(A) (1992).

III

The standard for review for a DHR determination of no probable cause has been conclusively established. According to Simpson v. District of Columbia Office of Human Rights, 597 A. 2d 392, 406 (D.C. 1991), the standard is broader than “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In this case, however, even if we apply the latter standard, which is more favorable to appellant than the former (as the trial judge recognized), we can find no basis for overturning the finding of no probable cause. We agree with the assertion in DHR’s brief that that determination should be affirmed “under any reasonable standard.”

Agency action is presumed to be correct, and neither this court nor the trial court may substitute its judgment for that of the agency. Cohen v. Rental Housing Comm’n, 496 A.2d 603, 605 (D.C. 1985); accord, Rental Housing Comm’n 496 A.2d 603, 605 (D.C. 1985); accord, Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983). A determination of no probable cause, like any other agency decision, should not be disturbed unless the challenging party demonstrates “no rational connection between the facts found and the choice made” by the agency. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43; Cohen v. Rental Housing Comm’n, 496 A.2d at 605 (challenging party bears the burden of demonstrating error).

I am writing to let you know what a great pleasure it was to have Frank Tenaglia as a soloist with the Reading Symphony Orchestra. A mid concert standing ovation is rare, be it indoors, or, as our concert was, outdoors under the stars. The fact that 6500 people jumped to their feet, and we had to play a mid concert encore, is a testament to the impact Mr. Tenaglia's voice and musicianship had on the audience. People still talk to me about his performance. You can be certain we will invite Mr. Tenaglia for a return appearance in the very near future.

I am responding to your letter, dated November 18, 2004, requesting information on a District agency than can advise you concerning your allegation of discrimination in employment due to mental disability.

The District of Columbia's Office of Human Rights is the agency empowered to resolve complaints of discrimination in employment. You may contact them at:

This is in regard to your letter of May 17, 1994, acknowledging receipt of our letters on April 28, 1994 and May 13, 1994.

The Department of Justice has not been given authority to pursue an alleged civil rights violation of the kind described under 42 U.S.C. 1983. If you wish to pursue this matter under 42 U.S.C. 1983, we can only suggest that you may want to consult with private counsel of your choosing to determine what remedies, if any, may be available to you.

Sunday, December 25, 2011

Howard Shore’s thoroughly original arrangement of Richard Wagner’s Siegfried Idyll, performed by Lang Lang. Wagner composed the Idyll as a birthday present for his wife Cosima after the birth of their son Siegfried in 1869. It is a highly personal piece of music: its first performance, by a small ensemble in Wagner’s home on Christmas Day 1870, woke Cosima on that morning from her sleep. Later Wagner incorporated music from the Idyll into his opera Siegfried, the third of the four parts of The Ring.

Sunday, December 25, 1870 About this day, my children, I can tell you nothing—nothing about my feelings, nothing about my mood, nothing, nothing, nothing. I shall just tell you, dryly and plainly, what happened. When I woke up I heard a sound, it grew even louder, I could no longer imagine myself in a dream, music was sounding, and what music! After it had died away, R. came in to me with the five children and put into my hands the score of his "Symphonic Birthday Greeting." I was in tears, but so, too, was the whole household; R. had set up his orchestra on the stairs and thus consecrated our Tribschen forever!

The Tribschen Idyll—thus the work is called. — At midday Dr. Sulzer arrived, surely the most important of R.'s friends! After breakfast the orchestra again assembled, and now once again the Idyll was heard in the lower apartment, moving us all profoundly (Countess B. was also there, on my invitation); after it the Lohengrin wedding procession, Beethoven's Septet, and, to end with, once more the work of which I shall never hear enough! — Now at last I understood all R.'s working in secret, also dear Richter's trumpet (he blazed out the Siegfried theme splendidly and had learned the trumpet especially to do it), which had won him many admonishments from me. "Now let me die," I exclaimed to R. "It would be easier to die for me than to live for me," he replied. — In the evening R. reads his Meistersinger to Dr. Sulzer, who did not know it; and I take as much delight in it as if it were something completely new. This makes R. say, "I wanted to read Sulzer Die Ms, and it turned into a dialogue between us two."

This is in response to your request for a substantial weight review of the above-referenced charge of employment discrimination. No review of your file was conducted because your charge alleged discrimination on a basis of sexual orientation, which is not covered by any of the statutes enforced by the EEOC.

If you would like to obtain copies of your investigative file, you need to contact the DC Office of Human Rights for their policies on file disclosure. Their offices are located at One Judiciary Square, 441 4th Street NW, Suite 970N, Washington, DC 20001. I am sorry that we cannot help you further in this matter. If you have any questions, I can be reached at the above address and fax number or by phone at (202) 275-7674.

Sincerely,

Laura W. Nawrocki

Acting State & Local Coordinator

[Pertinent portions of attached form:]

U.S. Equal Employment Opportunity Commission

_______________________

Dismissal and Notice of Rights

EEOC Form 161 (10/96)

[x] Other (briefly state) The EEOC does not have jurisdiction over allegations of sexual orientation discrimination.

Enclosed, as a courtesy, is a collection of some recent letters pertinent to the concerns of attorney managers of the law firm of Akin, Gump, Strauss, Hauer & Feld that, as of my job termination in October 1991, I posed a possible risk of violence related to a psychiatric disturbance.

Again, I want to assure the American University Board of Trustees that I am keeping federal authorities, including the Federal Protective Service, apprised of facts pertinent to the concerns, affirmed as genuine by the Office of D.C. Corporation Counsel, that I may pose a risk of armed violence including murder.